Partial transcript of Q&A with Sen. Al Franken (D-Minn.) on the “Drone Wars: The Constitutional and Counter-Terrorism Implications of Targeted Killing”. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights hearing was held on April 23, 2013:

Sen. Al Franken (D-Minn.):
…Obviously, drone strikes have transformed the way we conduct wars and this transformation has given rise to vocal opposition and extensive public debate. You know that we’re dealing in new strange territory when Sen. [Ted] Cruz and I have the same questions.

Imminence – I want to talk about this new standard which seems overly broad to me…

I think this debate and discussion is important which is why…the legal justifications for the strikes needs to be made and need to be made public in considerable form.

I went to the secure room and looked at some of these memos, and after reviewing them I do not understand why the expert redactors at the Department of Justice couldn’t have just stripped out any of the national security information, the sources and methods that need to be redacted and make the legal analysis public.

I was also disappointed that the administration did not send a witness today as was the Chairman and Ranking Member.

I have long argued that the Department should not practice secret law and should make all of the Office of Legal Counsel’s opinions available to the public. I think transparency and accountability are very important especially for an issue as sensitive as this.

I’m also troubled that this hasn’t been released to Congress on memos related to targeted killings.

…Just in terms of targeting U.S. citizens by – we had a situation in Boston where we had a guy holed up in a backyard in a boat and he, for all accounts, had explosives on him, and they did send a robot in actually to go in and take off the tarp over the boat. But isn’t it possible that we could see a situation in which we might want to take that person out in a different way? As odd as that is for me to ask; it feels odd. But anybody have an opinion on that?

I mean, the Attorney General answered the question about – it was actually Sen. [Rand] Paul’s question – does the President have the authority to weaponize a drone to kill an American not engaged in combat on American soil. Eric Holder said no but does anyone have an opinion on that?

General James Cartwright, United States Marine Corp (Ret.):
I would approach and let the lawyers talk about the law side of it. But there were in that scenario and many other hypothetical scenarios that you could walk through, inside the United States there are so many other means by which we can approach this situation safely and ensure that if the last act was for the individual to stand up and put their hands in the air that we would not revoke that right of the individual to give up. And so, to me, to stand off and shoot in the case of a drone is normally not something I could…

…

Rosa Brooks, Professor of Law at Georgetown University Law Center:
The only thing that I would say is I think it’s very important to distinguish between the kind of weapon and the kind of legal framework. If it’s a weapon that is released by remotely-piloted vehicle or robot, it’s just a weapon. We have very clear rules in the domestic law enforcement context about when police can use lethal force. Those are clear as long as we have that clear legal framework – the lethal force – it’s sort of irrelevant what means you use. The problem is not the drone hypothetically being used as opposed to something else. I think the problem is whether we think we have to abide by the normal rules that govern police use of lethal force or whether we think we are in a law of war environment in which as Professor Somin noted earlier you can target an enemy combatant while he’s sleeping; he doesn’t need to pose an imminent threat. You’re targeting based on his status not based on his activities.

Sen. Al Franken (D-Minn.):
Okay, since you’re talking about the method we use and we’re talking about blowback, Mr. Bergen and Mr. Al-Muslimi – a very disturbing testimony. This might to be both Professor Brooks or Mr. Bergen or anyone. We have blowback when we do manned airstrikes. What is the difference? In other words, what is the – I think you wrote in your testimony…Professor Brooks – that there are civilian, obviously civilian casualties when we do manned airstrikes. Is there a qualitative difference? I mean, is there really…?

Colonel Martha McSally, United States Air Force (Ret.):
Sen. Franken, this gets to the heart of what I was trying to get in my testimony, which is once you’ve answered the question that it’s legal to do a strike and that it’s good strategy to do a lethal strike, when you are then selecting the platform a remotely-piloted aircraft actually gives you better precision with a small warhead with persistence overhead with the ability to abort at the last minute with the whole chain of command and the lawyers watching, with the intel analysts who are not getting shot at. So once you’ve decided to actually conduct a strike, the RPAs provide unprecedented persistence and oversight.

When we are using even ground forces, special operations, artillery, fighter aircrafts which I’ve done many times, you do not have that same level of oversight. You often have, in some cases, individuals on the ground talking with aircraft overhead who’s buddies have just been shot up and their perspective is skewed, and so you’re making decisions in the heat of the battle. We do that with great precision as well.

But in this case, we’re talking about counter-terrorism operations and we’re having to choose the platform oftentimes we’re talking about places where we don’t have American forces and then we have to decide whether we want to risk American forces to go in there either on the ground or in the air. The RPAs do give us an asymmetrical capability where we don’t have to risk American forces. That is not a bad thing – that we’re not risking American forces once we’ve decided it’s important to conduct a lethal strike.

So this does provide greater lethality and persistence and the ability to abort than other assets.

Ilya Somin, Professor of Law at George Mason University School of Law:
Just one small comment on that question. I think the key point as I tried to stress in my written testimony is that what matters is not whether we’re using the drone or a bomb or a plane or even a sword or a dagger – that’s not what matters from a moral, legal point of view. What matter is whether we’re choosing the right target. If we have chosen the right target then we’re entitled to use all appropriate weapons, and I think it would be a mistake to ban a particular technology particularly in this case it’s more accurate and discriminating than other alternatives.

Sen. Al Franken (D-Minn.):
Mr. Al-Muslimi raised his hand. And what I wonder is and I think you’ll speak to this is that this new type of warfare – and Mr. Bergen has spoken to the number of the countries now 70 of them – is it a different kind of blowback? Is there a different kind of reaction because of the very nature of it?

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
Yes. I think the main difference between this is it adds to Al Qaeda propaganda of that Yemen is in a war with the United States.

The problem of Al Qaeda if you look to the war affecting Yemen it’s a war of mistakes. The less mistakes you make, the more you win. And the drones have simply made more mistakes than AQAP [Al Qaeda in the Arabian Peninsula] has ever done in matter of civilians.

…And you’re also neglecting a very simple fact which is you actually can capture this person. It’s not impossible. Just like the recent thing in my village. You could have captured this person. And that is a big blowback.

The AQAP power has never been based on how many numbers it has, whether it has 1,000 or 10,000. Actually, the difference is not that much. Its power is how much larger it has on the ground and how much it can convince more Yemenis that they are in a war with the United States, and the drones have been the great tool they have used to prove that they are in a war with the U.S. And I think that is a main blowback that is not really ground forces, especially if there is ground forces of Yemenis can capture them actually and have information from them.